Transcript

Damien Carrick: Dr Vivian Waller is a Melbourne lawyer who specialises in acting for survivors of sexual assault. She says the royal commission will go a long way to addressing the needs of survivors.

Vivian Waller: Well, I’m very pleased that the federal government has announced a royal commission; I think that that is an excellent decision and it will bring hope to a lot of people who have been sort of suffering in silence, really. It will give them confidence that their stories will be heard and listened to. In Ireland the royal commission achieved an enormous amount for victims of sexual abuse: it gave them a voice, these matters were investigated, the extent and breadth of the problem was uncovered, and ultimately, although that commission sat for nine, nearly ten years, a statutory scheme was set up to assist victims in obtaining compensation, and it actually cured a lot of the legal technical difficulties those people would’ve had if they were trying to commence common law proceedings. So it streamlined the process of those people seeking assistance.

Damien Carrick: There’s been a government consultation paper which has been sent to the states and the major stakeholders asking for their input in terms of the terms of reference for this royal commission. It’s said that it should look at identifying the obstacles for victims to making claims and ascertaining whether there is sufficient support to make such claims. Do you think that’s a good focus for this commission?

Vivian Waller: I think it’s a very important focus because for too long victims have been silenced and they’ve been hampered by some of the legal technical difficulties that prevent them from bringing claims. There’s a lot of psychiatric literature around explaining the phenomenon of delayed disclosure, that children who’ve been sexually abused, particularly by a person in position of power or authority over them, like a priest or a Christian brother, has a great deal of difficulty reporting those events, and it may not be until much later in life that they’re able to come forward for legal help or for medical help, and by that time the time limits that apply to commencing a civil claim are likely to have expired. So one of the key legal problems is dealing with sexual abuse claims that arise many years ago.

The other significant technical problem that litigants face, particularly when suing the Catholic Church, is difficulty identifying a defendant that can be sued. A lot of Catholic orders are set up something akin to an unincorporated association, so they don’t have a continuing legal entity that can be sued. It’s a bit like trying to hold the football club of a particular town responsible for perhaps having a sexual predator in their midst in the, say, early ‘70s, for example. There’s no point suing the current president and the vice-president of the football club, because they weren’t around at the time. What you need to do is find living members of the committee of management who were around at the time of the alleged offending. So that’s kind of a simple analogy to explain the difficulty in suing some of these Catholic entities.

Damien Carrick: Because there was a case, I think it was the Ellis case a few years ago, and that person was unsuccessful in suing the Catholic Church for the reasons...the kinds of reasons you’re talking about.

Vivian Waller: Yes, in that case it was held that the Church wasn’t a defendant that was capable of being sued; it didn’t have legal personality as such, and that case also is authority for the proposition that priests aren’t employees. So, there may be an offending priest, but that the church body may not necessarily be legally responsible for that. So these kinds of technical issues are very big impediments for people wishing to litigate their cases in court, if they’re seeking compensation. Now, quite frankly that does seem to be quite irrational. I can imagine a lot of your listeners thinking, ‘Well, let’s see, the Catholic Church employ people and they run committees and they have insurance, and they, you know, they employ teachers in their schools and they perform all of these tasks, how is it that they are not a legal entity capable of being sued like any other organisation that employs people, performs a service, hires a cleaner, hires a gardener?’ These are very tricky questions.

Damien Carrick: The government consultation paper also talks about the need to identify impediments within institutions and organisations that stop notification, investigation and prevention of child sexual abuse. You have some experience of the internal processes of the Catholic Church. What’s your view?

Vivian Waller: I do. There are two processes adopted by the Catholic Church: one is the Towards Healing protocol and the other is the process set up in Melbourne, sometimes called the Pell Process or the Melbourne Process, and they’re quite different. The Melbourne Process applies only to allegations against clergy within the responsibility of the Archdiocese of Melbourne, and all other allegations that arise in any other place in Australia fall within the Towards Healing protocol. Now, the police have had a lot to say about the difficulties that they’ve encountered in working with the Archdiocese of Melbourne, and they’ve also got some quite good data on that. So, don’t quote me on the figures, but there’s been in excess of 300 complaints that the Archdiocese of Melbourne have found to be credible, and they have assisted victims with financial compensation, and they involve allegations against 60 priests for whom the Archdiocese of Melbourne were responsible. Not one of those complaints, the Victoria Police tell us, have been referred to them for investigation. Some of those complaints have ended up being investigated by the police because the victim themselves took their complaint to the police, but of its own volition, none of those matters were sent to the police by the Church, and I can’t think of any other organisation that could preside over such horrifying statistics and not think, ‘Well hang on a minute, there appears to be some kind of endemic, systemic problem here, I should report this to the police.’

Damien Carrick: The consultation paper also talks about the need to change any laws, policies or procedures within institutions to better prevent and respond to abuse. Is that something you’d also welcome?

Vivian Waller: I would welcome that. I think the responsibilities for caring, educating children and looking after our vulnerable people are very important responsibilities, and I think that there should be more stringent reporting requirements so that these matters can be investigated by the proper authorities. My experience of the Towards Healing protocol is that those claims are not properly investigated or assessed by the Church’s internal processes. For example, I know for a fact that other class members in the same class of an alleged abuser were not contacted, were not asked if they had experienced any difficulty. The investigations are quite narrow, and they make each individual complainant feel like they are the only person who has ever experienced this problem, when I would know for a fact that several other class members in that year, because they have been my clients at some point in history, have complained about abuse from the...from the same person. So...

Damien Carrick: To the same body?

Vivian Waller: To the same body, to the same body.

Damien Carrick: So you’ve had experience of both internal processes and also with civil actions. A royal commission which sets up a complaints handling mechanism and perhaps a compensation system…you think that’s a better way forward?

Vivian Waller: I certainly think that internally managed schemes, particularly for the Catholic Church, have proven to be very problematic; they’ve proven that they lack independence and they’ve proven that they don’t work in well with the Victoria Police. That’s not to say that they haven’t delivered results for people who have been victims of sexual offences, because they have provided compensation, but I think that leaving those bodies in charge of investigating those complaints is inappropriate. We’re not talking about...I mean, really we’re talking about criminal offences against children, and those complaints should really be investigated by people who are properly qualified and truly independent, who have no vested interest. So, the best body to investigate that would be the police, or at least an independent…a body independent of any particular church or organisation.

Damien Carrick: Viv Waller, we’ve been talking about the Catholic Church, but your clients come from a range of traditions and backgrounds. These problems, are they across the board?

Vivian Waller: Sexual assault is a crime that occurs in every sector of our society regardless of religion or culture or even age and gender.

Damien Carrick: And it’s mostly in the home by family members.

Vivian Waller: That’s right. So it is a terrible problem in our community, and personally I have been involved in cases against churches of all faiths and denominations. Unfortunately Catholic organisations do appear to be drastically over-represented in terms of defendants in my practice, and I think that is because...I think that’s because the Catholic Church has not dealt with this particularly well. There is evidence available that the Catholic Church knew of particular offenders and moved them around from location to location, there’s evidence to suggest that the Church was aware, for example, of sexual crimes committed by Fr Ridsdale, and they moved him around from location to location. He’s now a convicted sex offender serving a jail sentence. He was charged with 93 charges, ultimately, in relation to child sexual offences. So I think once you have a powerful organisation that colludes in not referring matters to the police, not getting to the problem...getting to the nub of the problem, enabling sexual offenders to continue to offend simply by placing them in other locations, I think that magnifies the problem in that organisation, because the offences can continue.

Damien Carrick: Viv Waller, finally, you’ve obviously had a lot of conversations with your clients over the last week or so, can you recount for me a conversation which might reflect the thoughts of survivors?

Vivian Waller: Well, leaving out a few colourful expressions, I had a gentleman on the phone who was in tears, at the announcement of the royal commission and he is someone who had the experience of reporting to the police, and the police took his complaint seriously and there is actually a conviction against the Christian brother who assaulted him, so he said to me, ‘I can’t believe it, I can’t believe it, after all these years,’ he’s now a man in his 50s, ‘I first told a copper who believed me, and now our prime minister believes me that we need to look at these issues.’ And he was just overcome with tears of relief and joy. He said, ‘I need to stop crying long enough to crack my first beer.’

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Comments (3)

Pyrmonter :

24 Nov 2012 9:29:48pm

The plight of Vivian Waller's clients deserves sympathy, however I have misgivings about the "technical" nature of the factors she suggests are bases on which the "church" has "avoided" liability. In truth, these are not mere "technicalities" but the very basic concepts of our legal system.

It need first be remembered that the principal claim ought be against the perpetrator of the harm. The perpetrators will usually (but not always) be impecunious; but that is, frankly, no different to any other claim that may be made on an impecunious motorist, fraudster or company with nominal share capital and no insurance. Inevitably, when the deficiency is exposed, there is a search for a party with deep pockets - which it seems Dr Waller considers is the churches, although whether that is true, I doubt.

Although it wasn't entirely clear, it seemed that Dr Waller is concerned with three "technical" issues: whether there is a "church"; whether priests are "employed" so as to impose, as a matter of policy, vicarious liability on the church; and (although this was not as clear) some relaxation of the conventional limits for the bringing of claims by victims.

In each case, there are factors that may fairly be put in opposition to her concerns. I will try to summarise a few of them:

We live in a free society. Our law recognises that people associate, and generally does not prescribe how they do so. There are many different structures, including trusts for members; voluntary associations and clubs united merely by contract, or incorporated associations that can be the vehicles of association; however so long as the parties consent, there are no requirements for formal adoption of any particular legal form. While it seems the Roman church is established as a series of trusts and consensual contractual relationships, there does not seem to be any "corporate" entity that can be said to be the "church". I believe this is unique to the Roman church, but the decentralisation and use of complicated, sometimes over-lapping structures is not: each of the mainline Australian churches has independent affiliates of some degree or another. The extent to which some are truly "affiliated" (for example, the Uniting Church schools and hospitals) could be doubted: it is however this looseness and uncertainty that should caution against some idea that the "group" of affiliates is one entity.

Even if there were a central entity, issues would inevitably arise as to whether a particular activity fell within the aegis of that organisation: it is one thing for an organisation to share personnel or affiliation (such as, say, an independent choir foundation may be affiliated with a church congregation, or, in an industrial context, a "Workplace Reform Association" be founded by Union members); it is another

Pyrmonter :

27 Nov 2012 11:02:36pm

Is it possible to salvage the rest of the comment? I didn't appreciate how much space was available; the comment concluded with two further points about "employment: and the rationale for limitations of actions.